Louisiana has asked a federal appeals court to protect its ability to require public school classrooms to display the Ten Commandments.
Louisiana Attorney General Liz Murrill’s office filed its opening brief December 11 in the Fifth Circuit Court of Appeals defending the state’s Ten Commandments law.
Oral argument is scheduled for January 23.
“As we have illustrated in our briefs, there are numerous ways for our schools to constitutionally implement the law,” Murrill said. “And this should not be controversial: As the Supreme Court has said, the Commandments have historical significance as one of the foundations of our law. We look forward to the Fifth Circuit’s decision in this case.”
Last month, the Fifth Circuit overturned a statewide injunction blocking enforcement of Louisiana’s new law requiring the placement of the Ten Commandments in all public school classrooms. The 2-1 decision came after U.S. By approving the injunction blocking school officials from implementing the provisions of the law, District Court Judge John deGravelles sided with the plaintiffs who had challenged the law.
“When the (United States) Supreme Court hears oral argument, Moses and the Ten Commandments watch from on high in the courtroom — and when the Justices assemble in the conference room to cast their votes, they do so under Moses and the Ten Commandments, the central feature of the Court’s East Pediment,” Louisiana’s brief begins. “Similarly, when the Speaker of the U.S. House of Representatives ascends to the dais, he looks directly at a marble-relief portrait of Moses — in fact, all 22 other lawgivers depicted in marble-relief portraits likewise look directly at Moses.
“No one thinks this is some elaborate effort to coerce every public servant, attorney and tourist who sees these displays into worshipping and obeying Moses and the Commandments. Nor does anyone think that these displays burden the religious exercise of anyone who happens to see them, or that they, in fact, discriminate against other religions. No. Rather, these displays — like countless others across our nation — simply recognize the ‘historical significance’ that the Ten Commandments have ‘as one of the foundations of our legal system.’”
The state says that is the reasoning behind House Bill 1, which requires schools to post the Ten Commandments with displays that explain the historical significance.
“Plaintiffs (students and their parents) disagreed,” the brief states. “Five days after Governor (Jeff) Landry signed H.B. 71 into law, plaintiffs rushed to federal court eager to proclaim in press releases and media interviews that they were first in line to attack the Ten Commandments. To be clear: Plaintiffs have never seen an H.B. 71 display and have no clue how one of their schools might seek to implement H.B. 71. The district court obliged and enjoined defendants (state officials and five school boards) from implementing H.B. 71 by its January 1, 2025, deadline.”
The state goes on to say the district court ruling is “profoundly wrong on many levels.”
“Most fundamental is the district court’s mistaken insistence that it has subject matter jurisdiction,” the brief states. “Neither this court nor the Supreme Court has ever claimed Article III jurisdiction to adjudicate a First Amendment challenge to a religious display that no one has seen.
“That is true both as a matter of ripeness and as a matter of offended-observer standing. Indeed, if plaintiffs could successfully press their theory of imaginary offended-observer standing here, that would only highlight how the theory of offended-observer standing itself distorts ordinary justiciability principles.
According to the planned law, schools would have broad flexibility in designing the Ten Commandments displays, and no public funds would be needed for their installation.
Murrill’s office filed the emergency appeal with the Fifth Circuit last month with the help of the Becket Fund for Religious Liberty, arguing the ACLU lawsuit that put the law on hold is premature and should be dismissed because no displays have been installed yet. The appeal also says Louisiana is following the long national tradition of “displaying passive religious symbols within the public view.”
Becket, which is based in Washington, D.C., says the case is similar to atheist activist challenges to “under God” in the Pledge of Allegiance and the National Motto “In God We Trust” on U.S. coins. Becket was able to help defeat legal challenges to those issues.
“Religious symbols have been a fixture of American public life since before the founding,” Becket says. “Just after declaring Independence, the Continental Congress tasked Benjamin Franklin, Thomas Jefferson and John Adams with designing a national seal. Though the Great Seal eventually adopted a different design, all three proposed overtly religious designs drawn from the Hebrew Bible.
“Over the centuries, many state and local governments have followed the founders’ lead by including religious elements in their flags, seals and buildings to commemorate history and culture and to acknowledge the beliefs of their citizens.”
Becket again cites the walls of the U.S. Supreme Court that feature the Ten Commandments.
“If the ACLU had its way, every trace of religion would be scrubbed from Louisiana’s public square,” said Joseph Davis, senior counsel at Becket. “Thankfully our Constitution says otherwise: Louisiana is allowed to acknowledge every aspect of our history and culture — including the Ten Commandments.”
The lawsuit was filed by the ACLU of Louisiana on behalf of parents of schoolchildren by the ACLU of Louisiana and other groups.
Defendants in the case include Cade Brumley, the state superintendent of education, and members of the Louisiana State Board of Elementary and Secondary Education. In the appeal, Murrill’s office argues the judge's ruling only should apply to the five school districts named in the lawsuit – East Baton Rouge Parish Schools, Livingston Parish Schools, St. Tammany Parish Schools, Orleans Parish Schools and Vernon Parish Schools.
Attorney General Liz Murrill has stressed in previous statements that Louisiana’s school boards are independent, elected entities within political subdivisions.
“BESE is not the supervisor of school boards in Louisiana,” Murrill said in a statement emailed to the Louisiana Record. “BESE does not have legal supervision over school boards. Only five school boards are defendants, and therefore the judge only has jurisdiction over those five.”